]]>A California appellate court held an employer’s use of a rounding policy for its non-exempt employees complied with California law because it did not disfavor employees. (Donohue v. AMN Services, LLC (Dec. 10, 2018) Case No. D071865.)

AMN employed Donohue as a nurse recruiter who was non-exempt from California’s overtime requirements. AMN tracked recruiters’ time with a computer-based timekeeping system, in which recruiters would punch in for the day, punch out when they took a meal break, punch back in when they returned from their meal break, and punch out at the end of the day. AMN rounded recruiters’ punch times to the nearest 10-minute increment. For example, all punch times between 7:55 a.m. and 8:04 a.m. would record as 8:00 a.m., and all punch times between 8:05 a.m. and 8:14 a.m. would record as 8:10 a.m. Donohue brought a class action lawsuit alleging AMN’s rounding policy violated various California wage and hour laws. The trial court granted summary judgment for AMN, and the court of appeal affirmed.

The court noted that California law permits employers to use a rounding policy if it is “fair and neutral on its face and it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” Under this standard, “an employer’s rounding policy is fair and neutral if on average, it favors neither overpayment nor underpayment; but such a policy is unacceptable if it systematically undercompensates employees because it encompasses only rounding down.”

The court held AMN satisfied this standard as a matter of law based on expert testimony from a labor economist. The economist analyzed 311 recruiters’ time records and determined that AMN’s policy resulted in a net surplus of 1,929 work hours in paid time for the recruiters, including a net surplus of 9.82 hours for the representative plaintiff herself. The court rejected the plaintiff’s attempt to raise a triable issue based on expert testimony from a statistics professor. Although the statistics professor found that the rounding policy resulted in AMN failing to pay certain employees for 2,631 hours worked, the court held his testimony was flawed because it focused solely on employees who happened to have a late or short meal period. Because AMN’s rounding policy on the whole was neutral as to all class members, the policy was lawful.

Jackson Lewis wage and hour specialists are available to assist employers with designing and implementing rounding policies to ensure compliance with state and federal law.

]]>https://www.californiaworkplacelawblog.com/2018/12/articles/california/employer-successfully-defends-rounding-policy-by-showing-it-did-not-disfavor-employees/feed/0California Law Pushes Virtue of Diversity Requiring Females on Boards of Directorshttps://www.californiaworkplacelawblog.com/2018/10/articles/california/california-law-pushes-virtue-of-diversity-requiring-females-on-boards-of-directors/
https://www.californiaworkplacelawblog.com/2018/10/articles/california/california-law-pushes-virtue-of-diversity-requiring-females-on-boards-of-directors/#respondThu, 04 Oct 2018 17:09:43 +0000https://www.californiaworkplacelawblog.com/?p=2841California Governor Jerry Brown recently signed Senate Bill 826 into law which requires publicly-held corporations with principal executive offices in California to have a certain number of females on their boards of directors. The new law sets forth phased requirements for these corporations. By the end of 2019, each covered company must have at least...… Continue Reading

]]>California Governor Jerry Brown recently signed Senate Bill 826 into law which requires publicly-held corporations with principal executive offices in California to have a certain number of females on their boards of directors.

The new law sets forth phased requirements for these corporations. By the end of 2019, each covered company must have at least one female director. By the end of 2021, this number increases to three female directors if the company has six or more directors in total. (For boards with five or fewer directors, the numbers decrease.) To continue to read this blog please visit our post on the Corporate Compliance and White Collar Advisor blog.

]]>https://www.californiaworkplacelawblog.com/2018/10/articles/california/california-law-pushes-virtue-of-diversity-requiring-females-on-boards-of-directors/feed/0California Governor Vetoes Bill Prohibiting Mandatory Arbitration Provisions in Employment Contractshttps://www.californiaworkplacelawblog.com/2018/10/articles/arbitration-agreements/california-governor-vetoes-bill-prohibiting-mandatory-arbitration-provisions-employment-contracts/
https://www.californiaworkplacelawblog.com/2018/10/articles/arbitration-agreements/california-governor-vetoes-bill-prohibiting-mandatory-arbitration-provisions-employment-contracts/#respondMon, 01 Oct 2018 17:45:42 +0000https://www.californiaworkplacelawblog.com/?p=2837In a last-minute action on the September 30 legislative deadline, California’s Governor vetoed a bill that, among other things, would have imposed restrictions on the use of arbitration agreements for certain employment claims. Under vetoed Assembly Bill 3080, beginning on January 1, 2019, employers in California would have been barred from requiring employees and independent...… Continue Reading

]]>In a last-minute action on the September 30 legislative deadline, California’s Governor vetoed a bill that, among other things, would have imposed restrictions on the use of arbitration agreements for certain employment claims.

Under vetoed Assembly Bill 3080, beginning on January 1, 2019, employers in California would have been barred from requiring employees and independent contractors to sign arbitration or nondisclosure agreements as a condition of their employment (or continued employment). The bill also would have prohibited employers from retaliating against employees who refuse to sign such agreements.

On July 16, 2018, California Governor Jerry Brown signed into law Assembly Bill 3247 (“AB 3247”), which amends the California Arbitration Act (Cal. Code Civ. Proc. § 1280 et seq.), specifically, section 1281.2 of the California Code of Civil Procedure. Effective January 1, 2019, section 1281.2 will now state that a court may not enforce an arbitration agreement if “grounds exist for rescission of the agreement, [emphasis added]” as opposed to the prior language which called for “grounds [to] exist for the revocation of the agreement [emphasis added].” (Assem. Bill No. 3247 (2017-2018 Reg. Sess.) The bill also makes other non-substantive changes.

Existing law currently requires a court, on petition of a party to an arbitration agreement alleging: (1) the existence of a written agreement to arbitrate a controversy and (2) that a party to the agreement refuses to arbitrate the controversy, to order the petitioner and the respondent to arbitrate the controversy if the court determines that an agreement to arbitrate exists, unless the court makes other determinations, including, among other things, that grounds exist for the revocation of the agreement. (Code Civ. Proc. § 1281.2.)

As the California Supreme Court observed in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 98, revocation of a contract is a misnomer because only offers to create a contract can be revoked. If an offer is revoked, there is by definition no contract or agreement. Once a contract has been formed, it is only undone by rescission. Armendariz was further cited in the Assembly Committee analysis. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3247 (2017-2018 Reg. Sess.) as amended April 30, 2018.) Moreover, if the current revocation language is taken literally, there may be situations where a court upholds an arbitration agreement when grounds for rescission exist (such as fraud, misrepresentation, mistake, or a lack of capacity to content), but which do not also constitute grounds for revocation. AB 3247 also resolves that potential issue.

Please contact Jessica Armijo with any questions or the Jackson Lewis attorney you work with normally.

]]>https://www.californiaworkplacelawblog.com/2018/07/articles/arbitration-agreements/governor-brown-signed-bill-amending-a-key-term-in-the-california-arbitration-act/feed/0New California Law Prohibits Refusing Entrance to a Business Because a Member is Wearing Their Military Uniform and Adds Other Protectionshttps://www.californiaworkplacelawblog.com/2018/07/articles/california/new-california-law-prohibits-refusing-entrance-to-a-business-because-a-member-is-wearing-their-military-uniform-and-adds-other-protections/
https://www.californiaworkplacelawblog.com/2018/07/articles/california/new-california-law-prohibits-refusing-entrance-to-a-business-because-a-member-is-wearing-their-military-uniform-and-adds-other-protections/#respondTue, 17 Jul 2018 16:43:42 +0000https://www.californiaworkplacelawblog.com/?p=2747On July 16, 2018, Governor Brown signed into law SB 1500 which expanded protections for members of the Armed Forces of the United States and to members of the Federal Reserve components of the Armed Forces. The new law makes clear that no business and other covered establishments may deny a member of the Armed...… Continue Reading

]]>On July 16, 2018, Governor Brown signed into law SB 1500 which expanded protections for members of the Armed Forces of the United States and to members of the Federal Reserve components of the Armed Forces.

The new law makes clear that no business and other covered establishments may deny a member of the Armed Forces of the United States entrance when they are wearing their uniform. In the news, there have been different stories of businesses choosing to deny service or entrance for certain reasons. This new California law has made it clear that a business cannot deny entrance merely because a member of the Armed Forces is wearing their uniform.

This law also extends protections from discrimination, including discharge from employment, to members of the Federal Reserve components of the Armed Forces of the United States and members of the State Military Reserve. California law already protects members of the military or naval forces of the state or of the United States or a person ordered to military duty or training or by reason of being a member of the military or naval forces of the state or U.S.

Employers who regularly deal with the public and others may consider notifying their supervisors and employees about this new development. If you have any questions, please feel free to contact Jonathan A. Siegel or the Jackson Lewis attorney you normally deal with.

]]>https://www.californiaworkplacelawblog.com/2018/07/articles/california/new-california-law-prohibits-refusing-entrance-to-a-business-because-a-member-is-wearing-their-military-uniform-and-adds-other-protections/feed/0Employer Found Liable Where Supervisor Mocked Employee’s Stuttering Problemhttps://www.californiaworkplacelawblog.com/2018/07/articles/harassment/employer-found-liable-where-supervisor-mocked-employees-stuttering-problem/
https://www.californiaworkplacelawblog.com/2018/07/articles/harassment/employer-found-liable-where-supervisor-mocked-employees-stuttering-problem/#respondFri, 13 Jul 2018 17:56:46 +0000https://www.californiaworkplacelawblog.com/?p=2742In responding to claim of harassment, discrimination or retaliation based on protected categories, California employers must timely respond to and thoroughly investigate workplace complaints to avoid exposure. On July 9, 2018, a California Court of Appeal court found an employer liable where an employee was mocking a person for having a stutter on more than five,...… Continue Reading

]]>In responding to claim of harassment, discrimination or retaliation based on protected categories, California employers must timely respond to and thoroughly investigate workplace complaints to avoid exposure. On July 9, 2018, a California Court of Appeal court found an employer liable where an employee was mocking a person for having a stutter on more than five, but less than fifteen occasions over a two-year period from 2006 to 2008. In Caldera v. Department of Corrections and Rehabilitation, et al., the plaintiff brought suit after allegedly being subject to jokes over a two-year period of time. The jury awarded plaintiff $500,000. The trial court, finding the jury award excessive, granted a new trial as to damages. Both parties appealed.

The Court of Appeal reversed the trial court’s decision to overturn the verdict. The Court noted that since two of the mocking incidents took place in front of several other employees and supervisors, and a psychologist testified that the mocking caused plaintiff to experience psychological disorders, a “totality of the circumstances” indicates that the harassing conduct was severe. And even though neither plaintiff nor his witnesses could remember exactly how many times plaintiff was mocked or when exactly he was subject to any mocking the court found that the employer’s culture supported the jury’s finding that the harassing conduct was also pervasive. This case underscores the importance of being proactive to workplace concerns. California jurors and courts will not tolerate harassing conduct even when specifically linked to individuals mocking an employee’s stuttering problem. Please contact Jackson Lewis with any questions you may have about your harassment policies, procedures and practices.

]]>https://www.californiaworkplacelawblog.com/2018/07/articles/harassment/employer-found-liable-where-supervisor-mocked-employees-stuttering-problem/feed/0Federal District Judge Puts On Hold Parts of AB 450 Which Prohibited Employers From Voluntarily Consenting To A Federal Immigration Agent’s Request To Enter Nonpublic Areas or For Voluntarily Providing Recordshttps://www.californiaworkplacelawblog.com/2018/07/articles/california/federal-district-judge-puts-on-hold-parts-of-ab-450-which-prohibited-employers-from-voluntarily-consenting-to-a-federal-immigration-agents-request-to-enter-nonpublic-areas-or-for-voluntarily/
https://www.californiaworkplacelawblog.com/2018/07/articles/california/federal-district-judge-puts-on-hold-parts-of-ab-450-which-prohibited-employers-from-voluntarily-consenting-to-a-federal-immigration-agents-request-to-enter-nonpublic-areas-or-for-voluntarily/#respondThu, 05 Jul 2018 23:01:01 +0000https://www.californiaworkplacelawblog.com/?p=2733On July 4, 2018, Federal District Judge John A. Mendez granted a preliminarily injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. Specifically, the Judge stopped the enforcement of the California Government...… Continue Reading

]]>On July 4, 2018, Federal District Judge John A. Mendez granted a preliminarily injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. Specifically, the Judge stopped the enforcement of the California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. The Judge upheld two other sanctuary state laws and part of AB 450. The Judge stated in his decision:

AB 103, SB 54, and the employee notice provision of AB 450 are permissible exercises of California’s sovereign power. With respect to the other three challenged provisions of AB 450, the Court finds that California has impermissibly infringed on the sovereignty of the United States.

Effective January 1, 2018, California’s public and private employers have been prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant under AB 450. Today’s decision directly impacts these two key areas for employers.

The Judge put on hold or enjoined California from enforcing Government Code Sections 7285.1 and 7285.2 against private sector employers. This means private sector employers can not currently be prosecutedfor:

(1) allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;

The Judge also put on hold the new California prohibition against employers from re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.

However, the Judge upheld the notice requirements in AB 450 even though they place an administrative burden on California employers. California employers are still required to provide notice to employees as follows:

Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. California has now released a template Notice of Inspection Form, which meets the requirements under Labor Code 90.2(a)(1).

Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.

The federal District Court decision could be appealed by either party so employers should contact Jackson Lewis with any questions regarding the Court’s opinion or the application of AB450. Please feel free to contact Jonathan A. Siegel, Brian E. Schield or Richard B. Azada or the Jackson Lewis attorney you normally work with.

]]>https://www.californiaworkplacelawblog.com/2018/07/articles/california/federal-district-judge-puts-on-hold-parts-of-ab-450-which-prohibited-employers-from-voluntarily-consenting-to-a-federal-immigration-agents-request-to-enter-nonpublic-areas-or-for-voluntarily/feed/0Cal/OSHA Issues Advisory for Employers to Take Precautions to Protect Workers Exposed to Hazards Relating to Wildfireshttps://www.californiaworkplacelawblog.com/2018/07/articles/california/cal-osha-issues-advisory-for-employers-to-take-precautions-to-protect-workers-exposed-to-hazards-relating-to-wildfires/
https://www.californiaworkplacelawblog.com/2018/07/articles/california/cal-osha-issues-advisory-for-employers-to-take-precautions-to-protect-workers-exposed-to-hazards-relating-to-wildfires/#respondThu, 05 Jul 2018 22:27:01 +0000https://www.californiaworkplacelawblog.com/?p=2730A high heat advisory for employers with outdoor workers in Central and Southern California has been issued by Cal/OSHA. With temperatures rising and more than 10 active wildfire incidents in California, Cal/OSHA is also advising employers that special precautions must be taken to protect workers from hazards from wildfire smoke and other possible concerns. Cal/OSHA...… Continue Reading

]]>A high heat advisory for employers with outdoor workers in Central and Southern California has been issued by Cal/OSHA. With temperatures rising and more than 10 active wildfire incidents in California, Cal/OSHA is also advising employers that special precautions must be taken to protect workers from hazards from wildfire smoke and other possible concerns.

Cal/OSHA is concerned about workers being exposed to chemicals, gases, and fine particles that can potentially harm lung function, aggravate asthma and other respiratory functions.

To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99 or P-100, and must be labeled approved by the US National Institute for Occupational Safety and Health (NIOSH).

Approved respiratory protective equipment is necessary for employees working in outdoor locations designated by local air quality management districts as “Unhealthy”, “Very Unhealthy” or “Hazardous”.

It takes more effort to breathe through a respirator and it can increase the risk of heat stress. Frequent breaks are advised. Workers feeling dizzy, faint or nauseated are advised to go to a clean area, remove the respirator and seek medical attention.

Respirators should be discarded if they become difficult to breathe through or if the inside becomes dirty. A new respirator should be used each day.

]]>https://www.californiaworkplacelawblog.com/2018/07/articles/california/cal-osha-issues-advisory-for-employers-to-take-precautions-to-protect-workers-exposed-to-hazards-relating-to-wildfires/feed/0California’s Hotel Housekeeping Standard: Ready or Not, Here it Comeshttps://www.californiaworkplacelawblog.com/2018/06/articles/calosha-2/californias-hotel-housekeeping-standard-ready-or-not-here-it-comes/
https://www.californiaworkplacelawblog.com/2018/06/articles/calosha-2/californias-hotel-housekeeping-standard-ready-or-not-here-it-comes/#respondMon, 25 Jun 2018 21:34:26 +0000https://www.californiaworkplacelawblog.com/?p=2724California’s long-awaited standard on “Hotel Housekeeping Musculoskeletal Injury Prevention” is finally here, coming into effect for California hotels and other lodging establishments on July 1, 2018. The standard is designed to control the risk of musculoskeletal injuries to housekeepers. The standard applies to “lodging establishments,” such as hotels, motels, resorts, and bed and breakfast inns....… Continue Reading

]]>California’s long-awaited standard on “Hotel Housekeeping Musculoskeletal Injury Prevention” is finally here, coming into effect for California hotels and other lodging establishments on July 1, 2018. The standard is designed to control the risk of musculoskeletal injuries to housekeepers. The standard applies to “lodging establishments,” such as hotels, motels, resorts, and bed and breakfast inns. Please find the rest of this article in our OSHA Law Blog here.

]]>https://www.californiaworkplacelawblog.com/2018/06/articles/calosha-2/californias-hotel-housekeeping-standard-ready-or-not-here-it-comes/feed/0Santa Monica to Implement New Minimum Wage Lawhttps://www.californiaworkplacelawblog.com/2018/06/articles/wage-and-hour/santa-monica-to-implement-new-minimum-wage-law/
https://www.californiaworkplacelawblog.com/2018/06/articles/wage-and-hour/santa-monica-to-implement-new-minimum-wage-law/#respondWed, 20 Jun 2018 20:03:24 +0000https://www.californiaworkplacelawblog.com/?p=2715It’s summertime in the City of Santa Monica and with sunny days and cool ocean breezes also comes an increase in the minimum wage commencing on July 1, 2018. Each year on July 1, Santa Monica employers must comply with the City’s minimum wage law, which was enacted in 2016 and currently runs through 2021....… Continue Reading

It’s summertime in the City of Santa Monica and with sunny days and cool ocean breezes also comes an increase in the minimum wage commencing on July 1, 2018. Each year on July 1, Santa Monica employers must comply with the City’s minimum wage law, which was enacted in 2016 and currently runs through 2021. On July 1, 2018, Santa Monica’s new minimum wage will increase to $12 per hour for employers with 25 or fewer employees; to $13.25 per hour for employers with 26 or more employees; and $16.10 per hour for hotel workers. Santa Monica’s minimum wage law for hotels and businesses operating on hotel property was enacted to match City of Los Angeles minimum wage rates. Santa Monica employers must also post in a conspicuous place minimum wage notices in English, Spanish, and any other language spoken by at least 5% of its employees.

For employers not operating in Santa Monica, summertime also serves as a reminder to check your local city government sites to ensure compliance with any mid-year minimum wage increases that might affect your business.